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Thread Title: DRE then ROM
Created On Thursday October 30, 2008 3:14 PM

rosellavera
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Thursday October 30, 2008 3:14 PM

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I have an applicant who experienced lumbar radiculopathy secondary to a lumbar disc injury at work. The final diagnoses was chronic back more so than lower extremity radicular pain in the setting of L4-5 and degenerative protrusions. The AME first gave the applicant a 13% WPI per DRE CAT based on signs of radiculopathy and positive imaging study per Table 15.3 on page 384. He also provided a 3% pain-add on. This report was dated 12/07. Ten months later, AME re-evaluates the applicant, has the same diagnoses, but this time rates the impairment per ROM. There were no multiple level involvement. What would cause the AME to change the impairment using the ROM method when his first rating was under DRE.

denyse
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Saturday November 01, 2008 7:33 AM

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Physician error. One level radiculopathy = DRE. Query, has the radiculopathy resolved with conseravative care and is no longer considered significant? If so. DRE II. Why the DRE increase? Is there any documentation? Why the DRE increase and pain add on. If the DRE range accounts for unresolved symtomotology that impacts ADL, then it would appear to be douple dip as what would cause one to stop doing an ADL? Pain. I'd get to a private rater and then get a supplemental. Plus, Cali says 3% maximum for pain increase. We are at 6% if pain and DRE increase analogous.

rosellavera
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Monday November 03, 2008 12:41 PM

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Hi Denyse:

No, radiculopathy is still present. I reviewed the diagnostic testing. The old MRI demonstrated changes at L4, L5 and L5-S1. The doctor stated as follows:

If the lumbar symptomatology is to be defined by the Range of Motion Method, the following would apply: according to Table 15.7
on Page 404, II, Subsection C, 7% impairment is appropriate. Lumbar flexion of 10 degrees is a 8% impairment as per Table l5-8
on Page 407. Lumbar extension of 5 degrees is a 6% impairment as per Table 15- 8 on Page 407. Left lateral bend of 10 degrees is a 3% impairment as per Table 15-9 on Page 409. Right lateral bend of 10 degrees is a 3% impairment as per Table
15-9 on Page 409. A 20% Range of Motion impairment combined with a 7% Table l5. 7 impairment is consistent with a 26% whole person impairment. Because of the need for chronic narcotics, an additional pain rating of 3% is appropriate. A 26% impairment combined with a 3% pain impairment is consistent with a 28% WPI.

His previous opinion was: Applicant's symptomatology is consistent with a lumbar disc injury with radiculopathy and is permanent and stationary. A DRE Lumbar category of 13% impairment of the whole person (signs of radiculopathy and positive imaging study) as per Table 15.3 on page 384 Because of history of pain affecting activities of daily living as outlined above, a pain rating of 3% is appropriate.

Are the changes shown on the MRI considered "multiple level involvement"?

Thanks,

Rose

denyse
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Tuesday November 04, 2008 10:19 AM

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Multi-level involvement is not a basis to rate ROM unless the involvement means multiple levels of radiculopathy, fusions or fractures. This is stated in 15.2a (Principals). I note he says "if" it is rated under ROM, so maybe he is waffling and letting the parties decide (query: did he also list DRE). One novel way to get this addressed is to specifically ask the doctor to identify the level or levels of radiculopathy (and how that was determined). If he comes back and sticks with one level, then you can get this board rated. My experiences with the DEU is that this is one issue they uphold - especially if the issue is in focus (supplemental).

In cases like this I prefer a private rating to buttress the negotiations. A good rater with Cali experience should kick the 3% add on - keeps it at 13%. Then you have a 13% versus 16% dispute which could be resolve. How much more does the AA make off the increase (with their 15% cut). To me the narcotics are used for pain relief. DRE range accounts for unresolved symptomatology that impacts ADL. What causes one to terminate an ADL? Pain. What is being done to relieve pain? Meds. Double dipping. You might even get someone to argue 10%, and that the pain is not excessive and has been contemplated in the ADL which makes up the WPI. I think this is DRE III, 13% based on page 570 (Where there is excess pain..) and 600 (effects of meds). Query: why is he increasing the DRE? Is this different than pain?

Changes mean nothing - it's multiple levels of radiculopathy. Everyone over 40 has degenerative changes and multiple levels. That means everyone with a soft tissue strain/sprain get rated under ROM????

straightshooter
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Tuesday November 11, 2008 11:52 PM

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Was there a recurrent injury with a recurrent radiculopathy? If that was the reason for the reevaluation then the ROM evaluation would be reasonable. That does not seem to be the case. If not the case I agree with Denyse. Multiple disc degeneration without multiple levels of radiculopathy is not justification to use the ROM.

-------------------------
MAXMEDLEGAL
Max Moses MD
Main Office 877-922-0022
Email:max@maxmedlegal.com

denyse
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Thursday November 13, 2008 11:49 AM

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For clarification: that's a prior herniation and a new injury that causes a new herniation in the same spinal region. Not simply an injury (no HNP) in a spinal region where there once was an HNP. HNP must be confirmed by imaging study (page 382). It does not say recurrent radiculopathy (can be confirmed by EMG, atrophy, reflexes, etc.), it specifcally says HNP. As such, I would require a positive MRI.

ama andy
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Friday November 14, 2008 9:14 AM

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I would disagree with Denyse interpretation of page 380 of AMA Guides. Page 380 has two references to use of ROM method due to reoccurrence.

"Where there is recurrent radiculopathy caused by a new (recurrent) disk herniation or a recurrent injury in the same spinal region."

Like many passages of the AMA Guides this is poorly written. I would place emphasis on the recurrent radiculopathy, that could be cause by new or recurrent disk herniation or recurrent injury. This interpretation connects the recurrent radiculopathy to both the disk herniation and the recurrent injury. To interpret the sentence to connect the recurrent radiculopathy to only the disk herniation would allow the last part of the sentence "or a recurrent injury" to stand alone.

"There is recurrent disk herniation or stenosis with radiculopathy at the same or different level in the same spinal region"

This passage can also be interpreted a couple of ways. Once again I would place the emphasis on radiculopathy that could caused recurrent disk herniation or stenosis.

I believe the interpretation of requiring recurrent radiculopathy rather than requiring disk herniation is more consistent with the overall approach of the AMA Guides 5th edition, which places emphasis on radiculopathy when determining impairment. A problem with requiring disk herniation as a determinate for method choice is that one needs to define disk herniation. If one were to ask five doctors for the definition of disk herniation, one would probably receive three different answers.

I do agree with Denyse that the radiculopathy must meet the definition of radiculopathy. That is radicular symptoms verified by imaging studies. Imaging studies alone showing disk protrusion or herniation would be insufficient. Radicular symptoms alone would not be enough. To qualify for the ROM method under reoccurence one would need prior verified radiculopathy, followed by a reoccurence of verified radiculopathy. I see many instances where an injured had a back strain, followd by another back injury that the doctor places in the ROM method on the basis of recurrent injury. I would disagree as there would be no prior radiculopathy with which to reoccur.

Istok
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Tuesday January 06, 2009 9:19 AM

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<<

In cases like this I prefer a private rating to buttress the negotiations. A good rater with Cali experience should kick the 3% add on - keeps it at 13%. Then you have a 13% versus 16% dispute which could be resolve. How much more does the AA make off the increase (with their 15% cut). To me the narcotics are used for pain relief. DRE range accounts for unresolved symptomatology that impacts ADL. What causes one to terminate an ADL? Pain. What is being done to relieve pain? Meds. Double dipping. You might even get someone to argue 10%, and that the pain is not excessive and has been contemplated in the ADL which makes up the WPI. I think this is DRE III, 13% based on page 570 (Where there is excess pain..) and 600 (effects of meds). Query: why is he increasing the DRE? Is this different than pain?

>>

The 3% pain add-on will stand no matter what a private rater may say. It is the the doctors choice just like choosing 13% instead of 10%. Unless the doctor states a totally improper reason for the 3% pain, it is his opinion and that is good as gold. Consider this a subjective in the Guides.
When it comes to this topic, good luck finding a DEU rater that will agree with you on something stated by a defense rater.

denyse
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Tuesday January 06, 2009 9:00 PM

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Very few cases end up with a DEU rater. When litigated make them (AA) pay (compromise) or play.

denyse
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Tuesday January 06, 2009 9:13 PM

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p.s. As an employer and SI, I hope that the administrator doesn't accept the 3% without getting approval. Page 570 is in the book. It must be excessive. To blindly accept this without getting approval is dangerous - bad faith. There is no case law on this issue, so to say that 3% "will stand no matter what" is simply not accurate. There are no subjectives in the Guides. A DEU rating is advisory unless under judge's instructs. Even then, its appealable. I am not disagreeing that you are fighting perhaps a losing battle, but this issue is far from a slam dump (no case law), and you need to protect yourself by not accepting this without ER approval. My point is that 3% can sometimes yield 6% after adjustment so compromise if litigated. Why stipulate to worst case scenario? Query: A private rating should not accept this. As such, a compromise is postured.

lesliedilbeck
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Wednesday January 07, 2009 9:15 AM

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Denyse you are correct that recurrent herniation in the same spinal region is what prompts ROM use. Page 380 2nd column further clarifies the issue....see #4.

As far as accpeting add ons, I too am of the opinion that expert review is warranted. Our firm has determined that per 1% WPI there is a monetary correlation of approximately $1300. We have further data which demonstrates per 100 cases there is an average error rate that correlates to approximately 1.6 million dollars.

For more info go to http://www.impairment.com/ca_pd_ratings.htm

-------------------------
Leslie Dilbeck, W.C.C.P., C.I.R.
Senior Consultant
Brigham & Associates, Inc.

ama andy
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Saturday February 28, 2009 7:48 AM

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<< Denyse you are correct that recurrent herniation in the same spinal region is what prompts ROM use. Page 380 2nd column further clarifies the issue....see #4.

I would disagree with you Leslie. The passage you refer me on determining whether to use ROM method reads as follows:

"there is recurrent disk herniation or stenosis with radiculopathy at the same or different level in the same spinal region."

I am not sure how one could contruct this sentence to support your and Denyse position that it is recurrent disk herniation prompts ROM use. In the above sentence the word "recurrent" may either modify "disk herniation" or disk herniation or stenosis with radiculopathy". If the word recurrent modifies only "disk herniation" then the "strenosis with radiculopathy" stands alone as a criterion. If the word "recurrent" modifies "disk herniation or stenosis with radiculopathy" then there are two different conditions (disk herniation or stenosis) that if they cause recurrent radiculopathy would place injured in ROM method. This second interpretation places the emphasis on radiculopathy. This is consistent with other AMA Guides passages:

Page 380 left column #4

"Where there is recurrent radiculopathy cause by a new (recurrent) disk herniation or a recurrent injury in the same spinal region"

Once again, if one links recurrent to only recurrent disk herniation then the phrase "recurrent injury in the same spinal region" would stand apart as a criteria.

Page 398 bottom right column"if there is recurrent radiculopathy caused by a new (recurrent) disk herniation or recurrent injury in the same spinal region.:

Once again if one links the recurrent radiculopathy to the new or recurrent disk hernioation then the sentence structure allows the phrase "recurrent injury in the same spinal region" to stand alone as a criterion for the ROM method.

The best approach is to place the emphasis on the recurrent radiculopathy as a criterion for the ROM method. It is most consistent with the sentence structure in the above three AMA Guides passages.

If one has questions regarding applicability of the ROM method I would recommend sending the report to the DEU as they are the unbiased rating experts in California.

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